Opinion
Civil Action No. 1:02-CV-010-C
April 1, 2002
ORDER
On this date the Court considered Plaintiff's Motion for Summary Judgement filed on January 28, 2002, by Wayne Boyd ("Plaintiff") The Reporter Publishing Company ( The Abilene Reporder Newspaper) ("Defendant") untimely filed Defendant's Response to Plaintiff's Motion for Summary Judgment on March 8, 2002. This Court need not consider materials submitted after a reasonable filing deadline. Nevertheless, for the sake of thoroughness and clarity, this Court also considered be pertinent arguments raised by Defendant's untimely filed Response. The Affidavit of Plaintiff, Wayne Boyd, in Opposition to Defendant's Response to Plaintiff's Motion for Summary Judgement was filed March 11, 2002. After considering all the relevant arguments and evidence, the Court DENIES Plaintiff's Motion for Summary Judgement.
On this date the Court also considered Defendant's Motion for Summary Judgment and Defendant's Motion for Protective Order, which were both filed on February 27, 2002. The Affidavit of Plaintiff Wayne Boyd, in Opposition to Defendant's Motion for Summary Judgement and Protective Order was filed March 1, 2002. After considering all the relevant arguments and evidence, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES as moot Defendant's Motion for Protective Order.
I. FACTUAL BACKGROUND
The parties agree that Plaintiff purchased and Defendant published a display advertisement in The Abilene Reporter-News in the summer of 1976 or 1977. Defendant also acknowledges that a second advertisement was published on Plaintiffs behalf sometime in 1989. Plaintiff now brings suit alleging negligence and libel in connection with Defendant's publication of the two advertisements.
Defendant affirmative contends that Plaintiff's suit is barred under the statute of limitations, as well as the doctrines of res judicata and collateral estoppel
II. PROCEDURAL BACKGROUND
Plaintiffs Complaint was filed on January 14, 2002, and Defendant's Original Answer was filed on January 24, 2002. On January 28, 2002, Plaintiffs Motion for Summary Judgement was filed. Defendant's Response to Plaintiff's Motion for Summary Judgment was filed on March 8, 2002, and the Affidavit of Plaintiff, Wayne Boyd, in Opposition to Defendant's Response to Plaintiff's Motion for Summary Judgement was filed on March 11, 2002.
Defendant's Motion for Summary Judgment and Defendant's Motion for Protective Order were both filed on February 27, 2002. The Affidavit of Plaintiff Wayne Boyd, in Opposition to Defendant's Motion for Summary Judgement and Protective Order was filed on March 1, 2002.
III. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving patty, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 4177 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
IV. DISCUSSION
Plaintiff brings suit for negligence and libel based on the publication by Defendant of two advertisements purchased by Plaintiff in 1976 or 1977 and 1989. Defendant argues that Plaintiffs suit is barr under the statute of limitations, as well as the doctrines of res judicata and collateral estopp
"A person must bring suit for . . . libel . . . not later than one year after the day the cause of action accrues." TEX. CIV. PRAC. REM. CODE ANN. § 16.002(a) (Vernon 1986 Supp. 2002). The one-year statute of limitations for libel accrues on the date of publication. Chevalier v. Animal Rehabilitation Ctr., Inc., 839 F. Supp. 1224, 1231 (N.D. Tex. 1993).
"A person must bring suit for trespass for injury to the estate or to the property of another, conversion of property, taking or detaining the personal property of another, [and] personal injury . . . not later than two years after the day the cause of action accrues." TEX. CIV. PRAC. REM. CODE ANN. § 16.003(a) (Vernon 1986 Supp. 2002). "An action for negligence accrues at the time of the act or omission which constitutes negligence." Citizens State Bank of Dickinson v. Shapiro, 575 S.W.2d 375, 386 (Tex.Civ.App.___ Tyler 1979, writ ref'd n.r.e.). The two-year statute of limitations applies to causes of action for negligence and gross negligence. Morriss v. Enron Oil Gas Co., 948 S.W.2d 858, 869 (Tex.App.___ San Antonio 1997, no writ).
This Court finds that Plaintiffs libel and negligence causes of action accrued on the dates of publication, 1976 or 1977 and 1989. There can be no question that the one-year libel period of limitations and the two-year negligence period of limitations had long ago expired at the time Plaintiff instituted the instant case. Therefore, this Court finds that Plaintiff's claims are barred as a matter of law. This Court need not address Defendant's remaining arguments.
CONCLUSION
After considering all the relevant arguments and evidence, this Court DENIES Plaintiff's Motion for Summary Judgement GRANTS Defendant's Motion for Summary Judgment, and DENIES as moot Defendant's Motion for Protective Order.
SO ORDERED